On December 7, 2018, the US Court of Appeals for the Federal Circuit is scheduled to hear oral arguments in a case called Procopio v. Wilke. Although this case has quietly made its way through the courts, it has the potential to dramatically change the manner in which the US Department of Veterans Affairs addresses service-connected disability benefits claims associated with exposure to Agent Orange.
The Background: Presumptive Exposure to Agent Orange
The use of Agent Orange in southeast Asia during the Vietnam War was prolific. The herbicide contained dioxin, which is a toxin that is known to have had devastating health effects on the men and women who served in Vietnam. However, when filing disability claims veterans often had difficulty providing the scientific and medical evidence necessary to prove that their particular illness or condition was caused by exposure to Agent Orange.
Following litigation regarding the issue, Congress passed the Agent Orange Act of 1991. Among other things, this Act created 38 U.S.C. § 1116. Under Section 1116, a veteran that served in the Republic of Vietnam who develops certain health issues is presumed to have been exposed to Agent Orange, and the herbicide is presumed to have caused the illness. These presumptions became a powerful tool that enabled veterans to more easily obtain service-connected disability benefits.
The Problem: The Boots on the Ground Policy
When addressing claims for benefits arising from Agent Orange exposure, VA created what has become known as the “Boot on the Ground” policy. Simply put, under this policy, only veterans that physically set foot on the dry soil or inland rivers of Vietnam are entitled to the presumptions arising under Section 1116. However, veterans that served off shore in the Blue Water Navy are not entitled to the presumptions.